54 Ind. App. 59 | Ind. | 1912
Appellee recovered in this action against appellants for personal injuries alleged to have been caused by their negligence. Appellants assign error of the trial court in overruling their demurrers to each paragraph of complaint, in overruling their motion for judgment upon interrogatories and answers returned thereto by the jury, notwithstanding the general verdict, and in overruling their motion for new trial. The complaint was in two paragraphs. The first paragraph is upon the theory that appellants were guilty of violating the statutes governing the guarding of machines used in factories. In this paragraph it is stated, in substance, that defendants were partners, engaged in operating a planing mill wherein lumber was cut and shaped for building and mercantile purposes; that in the room where plaintiff was injured theré was located a planer table, ripsaw, frizzing machine, mortise machine and tenant machine, all of which were operated by power from an engine, by means of shafting and pulleys thereon, and the character, extent and situation of the shafting and pulleys are fully described. The situation of the planer, method of its operation, and things required of the employe in such operation are then alleged and described as follows. “That the said planer above referred to was located about two and one-half feet from said lower shafting, and the bits of said planer were operated by means of belting which ran from a pulley upon said lower shafting to a pulley known as the planer head, which operated said bits of said planer; that from two
The second paragraph sets out the same facts, but attempts to state a cause of action at common law, for the negligence of appellants in using the pulley with a nick in the flange, of which defect appellee had no knowledge.
The objection is made to the first paragraph of complaint that the averment that it was necessary for appellee to step over the lower revolving shaft and pulleys and into the small space between the shafting and planer and to do so while the shafting was in motion, is simply a statement of a conclusion or opinion, and is not the statement of a fact. It is also urged that the statement that the pulley was not guarded is without force or effect, as the statute does not require pulleys to be guarded.
There is abundance of evidence tending to prove tbe essential averments of tbe complaint, and tbe damages are not excessive, therefore the judgment must stand.
Judgment affirmed.
Note,—Reported in 99 N. E. 772. See, also, under (1) 26 Cyc. 1386; (2) 26 Cyc. 1090, 1134; (3) 26 Cyc. 1392; (5) 38 Cyc. 1929; (6) 26 Cyc. 1513; 38 Cyc. 1927; (7) 26 Cyc. 1482; (9) 26 Cyc. 1257; (11) 38 Cyc. 1736; (12) 38 Cyc. 1518; (13) 38 Cyc. 1778. As to master’s duty to guard or enclose dangerous machinery, see 98 Am. St. 299. As to the duty and liability of a master with respect to guarding shafting, see 18 Ann. Cas. 652.